The big story in the United States this week has been the attempt by the Republican-controlled legislature in Arizona to expand legal protections for those who want to discriminate on religious grounds. The measure, dubbed in many circles the “anti-gay bill”, has been opposed even by many in the Republican establishment, including former presidential candidates John McCain and Mitt Romney.
Current indications are that it will be vetoed by Arizona governor Jan Brewer, also a Republican. But similar bills are being considered or proposed in a number of other states, so the issue is not likely to go away soon.
I’ve written about anti-discrimination laws before – for example, in this piece from 2006. My general view is that I don’t like them; as I put it then,
The issue is whether or not the grounds for discrimination are relevant, and that is simply not a matter of hard fact.
Like censorship, which depends on the government being exclusively able to determine the meaning of words, anti-discrimination law requires a sort of omnipotence that the law does not have. Barring extreme cases, the best option is to let people make their own choices – to discriminate on the grounds that seem relevant to them, and leave the courts out of it.
But I don’t like the Arizona bill either. That’s partly, I confess, because its authors are so transparently focused on licensing bigotry; in effect, on denying the equal humanity of disfavored groups, specifically gays. But even bigots can sometimes be right. Could this legislation nonetheless be correct in principle?
I think not, for two important reasons.
First, because the right to discriminate isn’t given to everyone: it only applies if “the person’s action or refusal to act is motivated by a religious belief.” (There are other conditions as well, but you need that to even get to first base.) But why should that matter? If discrimination is a bad thing, why should religion get a free pass? Making religion a precondition for exercising some legal power surely amounts to an establishment of religion, specifically prohibited by the US constitution.
Conversely, if it’s safe to allow religious people to discriminate, why not allow everyone? As I said when the issue came up in Australia a few years ago, “If there is no compelling interest to stop churches discriminating against women, or gays, or Muslims, there is no compelling interest in stopping anyone else either.”
Defenders of the bill are quite correct in arguing that there is nothing new about this special privilege. After the Supreme Court, in Employment Division v. Smith, ruled that religion couldn’t be used to evade anti-drug laws, Congress in 1993 passed the Religious Freedom Restoration Act, effectively setting religious reasons above other reasons. Many states did the same, Arizona among them.
The current Arizona bill, however, goes further. Instead of just being a shield against persecution of individuals, it would explicitly extend the protection to businesses. And that brings us to the second reason that this is such bad legislation: it entrenches the idea that personal belief is a legitimate reason for refusing to do your job.
If I set myself up in business – let’s say as a wedding photographer – there’s a reasonable expectation that my services are available to anyone who offers to pay my fees (and meets other obvious conditions, such as not clashing with other work). If I refuse to take a particular job on the grounds, say, that the bride is a redhead and I disapprove of redheads, then I would be behaving outrageously. In appropriate circumstances, I could be sued for breach of contract.
Of course, I could specify upfront, on my promotional material, that redheads are not welcome, but very few businesses would be willing to do that. And in fact no-one thinks that discrimination against redheads is particularly worthy of legal protection. But Arizona Republicans do think exactly that when it comes to gays.
Some versions of the measure, such as the bill passed by the lower house in Kansas (although stalled in the state senate), would clearly have the effect of extending the protection to employees. Despite the fact that they were employed to provide a service, they could refuse to perform that task when it came to gay customers, and – if the law were taken seriously – be immune from any consequences.
There’s not much chance of laws like this surviving constitutional review. They would be vulnerable to attack on numerous grounds, including establishment of religion, equal protection and impairment of contracts. And whereas Republicans once saw little political downside in at least making anti-gay gestures, they are now risking considerable damage: hence the likely veto in Arizona.
Most likely, the controversy over anti-discrimination law will now quieten down for a bit – until someone finds a new minority group to scapegoat.